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2021 DIGILAW 3623 (MAD)

Palani Murugan v. Rengarajan

2021-12-23

V.BHAVANI SUBBAROYAN

body2021
JUDGMENT : The appeal is directed against the Judgment and Decree passed in A.S.No.34 of 2014, by the learned Principal Subordinate Court, Srivilliputhur, confirming the Judgment and Decree in O.S.No.185 of 2010, passed by the learned Additional District Munsif Court, Srivilliputhur. 2. For the sake of convenience, the parties are referred to herein, as per their own ranking, as before the Trial Court. 3. The case of the plaintiff, as per the averments made in the plaint, in short, is as follows : Originally the suit property belongs to the father of the defendants namely, Srinivasa Iyyangar and he intended to sell the suit property to the plaintiff's father namely, Muthaiah Thevar, for which, a sale agreement, dated 09.08.1979 was executed, wherein, sale consideration was fixed at Rs.21,480/- (Rupees Twenty One Thousand Four Hundred and Eighty only and paid a sum of Rs.15,000/- (Rupees Fifteen Thousand only) as advance and balance of Rs.8,480/- (Rupees Eight Thousand Four Hundred and Eighty only) have to be paid to the Srinivasa Iyyangar and six months time was fixed for executing the sale deed and the possession of the suit property was handed over to the plaintiff's father. Since then, the plaintiff's father was in possession and enjoyment of the same without any hindrance and the plaintiff was ready to pay the balance amount and get the sale deed, but the defendant's father Srinivasa Iyyangar did not come to Registration Office and execute the sale deed in his father's name and his father was in possession and enjoyment of the suit property till his life time. 4. It is further submitted that during the life time of his father, the defendants' father and the defendants did not take any steps to cancel the sale agreement and for recovery the possession of the suit property. After the demise of Muthaiah Thevar, on 20.06.1999, the plaintiff and his sisters were orally partitioned the suit property and other properties and enjoying the same. Further, in the month of April 2010, the defendants tried to trespass into the property of the plaintiff with the help of henchmen and hence, the plaintiff has filed a suit for permanent injunction. 5. Resisting the claim made by the plaintiff, the fifth defendant had filed a written statement along with counter claim for recovery of possession, which was adopted by the 7th respondent. 5. Resisting the claim made by the plaintiff, the fifth defendant had filed a written statement along with counter claim for recovery of possession, which was adopted by the 7th respondent. The defendants 1 and 7 have entered into a registered partition deed on 29.01.1987. As per the said partition deed, 'C' schedule property was allotted to the fifth defendant and out of 49 cents, half share of the same i.e. 24 1/2 cents in survey No.1474 and out of 1 acre 30 cents half share of the same, i.e., 65 cents in Survey No.1475 were allotted to him. Rest of the property was allotted to the seventh defendant and they are in possession and enjoyment of the same. Defendants father Srinivasa Iyyangar died on 05.11.2003 and mother Renganayaki Ammal died on 12.06.2009. Since father and mother were alive, they did not mutate the revenue records. The properties stands in the name of their father, till date. The plaintiff's father was working as a Labourer in the defendants' land and the defendants' father used to send the plaintiff's father for making payment of kist for their lands and other works and accordingly, he used to pay them but the plaintiff's father has not hand over the said kist receipts with an intention to cheat the defendants. The defendants further had tested the plaintiff's father. 6. Further, the plaintiff threatened the defendants to sell the property and from January 2009 onwards, the plaintiff encroached upon the property and did not give the possession to these defendants. The plaintiff is very well aware of the fact that the suit property does not belong to him, but he has filed a suit for permanent injunction and failed to claim any relief regarding declaration. This would show that all the claim made by the plaintiff are false and further the alleged sale agreement is a forged document and all the witnesses are known to the plaintiff and when there was no original document available. The revenue records are still standing in the name of the defendants' father and appropriate Court Fees has been paid by the defendants for the counter claim prayer and also they prayed for granting the relief of recovery of possession and hence, suit has to be dismissed with costs. 7. The revenue records are still standing in the name of the defendants' father and appropriate Court Fees has been paid by the defendants for the counter claim prayer and also they prayed for granting the relief of recovery of possession and hence, suit has to be dismissed with costs. 7. The reply statement filed by the plaintiff to the counter claim filed by the defendants is as follows: The counter claim made by the defendants is not maintainable either in law or on facts. The defendants' father used to get money from the plaintiff as well as various other persons and he has executed a pronote in favour of the plaintiff and accordingly, all the members of the defendants' family have also signed in the pronote. The defendants have also executed another sale deed in favour of the plaintiff, which is an agreement of sale and the plaintiff’s father used to pay money after the defendant’s executing the pronote. He also placed the said land as security in Spl.34 Primary Agricultural Co-operative Bank and also obtained agricultural loan. This was known to the defendants and hence, prayed for dismissal of the counter claim. 8. Before the trial Court, on the side of the plaintiff, the plaintiff examined himself as P.W.1, one Ramakrishnan and Murugesan, the Secretary of Keelarajakularaman Primary Agricultural Co-operative Bank, were examined as P.W.2 and P.W.3 and Exs.A1 to A22 were marked. On the side of the defendants, the fifth defendant examined himself as D.W.1 and Exs.B.1 to B.8 were marked. Ex.X.1 was marked through P.W.3. 9. On the basis of the rival pleadings made on either side, the trial Court, after framing necessary issues and after evaluating both the oral and documentary evidence, had dismissed the suit. 10. Aggrieved by the Judgment and decree passed by the trial Court, the plaintiff, as appellant, had filed an Appeal Suit in A.S. No.34 of 2014, on the file of the learned Principal Subordinate Court, Srivilliputhur. The first appellate Court, after hearing both sides and upon reappraising the evidence available on record, had dismissed the appeal and confirmed the Judgment and Decree passed by the trial Court. Challenging the said concurrent Judgments and Decrees passed by the Courts below, the present Second Appeal has been preferred at the instance of the plaintiff, as appellant. 11. Heard the learned counsel on either side and also perused the materials available on record. Challenging the said concurrent Judgments and Decrees passed by the Courts below, the present Second Appeal has been preferred at the instance of the plaintiff, as appellant. 11. Heard the learned counsel on either side and also perused the materials available on record. 12.The learned counsel appearing for the appellant/plaintiff would submit that the Courts below have failed to see that the suit property were handed over by the defendant's father in the year 1979 to the plaintiff's father by way of sale agreement, after receiving a sum of Rs.15,000/- (Rupees Fifteen Thousand only) towards advance. Since then, the plaintiff's father was in possession and enjoyment of the same till his life time and after that, the plaintiff is in possession for more than 30 years and the defendants does not prove their title and they cannot claim the recovery of possession from the plaintiff and the partition deed could not prove the title of the defendants and they ought to have produced the parental document, but without having the original documents, the plaintiff's father mortgaged the suit property with the Primary Agricultural Co-operative Bank and borrowed loan and subsequently, it was waived by the Government. Therefore, the possession and enjoyment of the suit property by the plaintiff's father and plaintiff is for more than 30 years and it was also known to the defendants. Therefore, the plaintiff perfected the title by adverse possession. Hence, prayed to allow the second appeal. 13. The learned counsel appearing for the respondents/defendants would vehemently oppose the Second Appeal by contending that the well considered Judgments of the Courts below need not be interfered with, as there is no question of law involved in this Second Appeal and prayed for dismissal of the Second Appeal. 14. This Court paid its anxious consideration to the rival submissions made and also carefully perused the materials placed on record. 15. According to the plaintiff, the suit property belongs to the father of the defendants viz., Srinivasa Iyyangar and he intended to sell the suit property to the plaintiff's father namely, Muthaiah Thevar, for which, a sale agreement was executed, wherein, sale consideration was fixed at Rs.21,480/- and paid Rs.15,000/-, as advance and balance have to be paid to Srinivasa Iyyangar and six months time was fixed for executing the sale deed and the possession of the suit property was handed over to the plaintiff's father. Though the plaintiff's father was ready to pay the balance amount, the defendant's father Srinivasa Iyyangar did not come forward to execute the sale deed in favour of plaintiff's father's name, till his life time. 16. According to the defendants, the defendants 1 and 7 had entered into a registered partition deed on 29.01.1987 and as per the said partition deed, 'C' schedule property was allotted to the fifth defendant and out of 49 cents, half share ie., 24-1/2 cents in Survey No.1474 and out of 1 acre 30 cents half share of the same, i.e., 65 cents in Survey No. 1475 were allotted to him. Rest of the property was allotted to the seventh defendant and they were in possession and enjoyment of the same. Defendants father Srinivasa Iyyangar died on 05.11.2003 and mother Renganayaki Ammal died on 12.06.2009. Till their father and mother alive, they do not mutate the revenue records. The plaintiff's father working as a Labour in the defendants' land and the defendants' father used to send the plaintiff's father for payment of kist and other works and accordingly, the plaintiff's father has not handed over the said kist receipts with an intention to cheat the defendants. Further, the plaintiff threatened the defendants to sell the property and from January 2009 onwards, the plaintiff encroached upon the property and do not give possession to these defendants. The revenue records are still standing in the name of the defendants' father. 17. It is the contention of the plaintiff that the defendants' father executed a pronote in favour of the plaintiff in which, the members of the defendants' family signed. The defendants have also executed another sale deed in favour of the plaintiff, which is an agreement of sale and the plaintiff’s father used to pay money after the defendant’s executing the pronote. The plaintiff has also pledged the said land, as security in Spl.34 Primary Agricultural Co-operative Bank and also obtained agricultural loan. Though the plaintiff has stated that from 1980 onwards, the defendants had given right over the property, which was not proved by the plaintiff by letting any evidence. P.W.1 in his cross-examination stated as follows:- OTHER LANGUAGE From the evidence of the plaintiff/P.W.1, it is seen that only for the payment of money, based on the pronote, the plaintiff’s family is in enjoyment of the property, has been accepted and admitted. 18. P.W.1 in his cross-examination stated as follows:- OTHER LANGUAGE From the evidence of the plaintiff/P.W.1, it is seen that only for the payment of money, based on the pronote, the plaintiff’s family is in enjoyment of the property, has been accepted and admitted. 18. When that being the case, the contention of the plaintiff that he is in possession of the property from January 1980 itself, cannot be countenanced. Further, based on the admission in the cross-examination that only after 1979, there was an oral agreement and based on that the pronote, the plaintiff was in possession. It was also found from his admission in cross examination that from 1979 onwards what was the steps taken by the plaintiff’s family seeking for specific performance by filing any suit or any other legal notice being issued against the defendants was also not produced. When they have not taken not any steps, when an admission was made by the plaintiff that his father had not taken any steps for payment of that amount and seeking for execution of the sale deed would prove that there was no such oral agreement and he was not in a position to take any such action against him legally, is also proved beyond doubts. 19. Further, when the plaintiff claimed that the possession was handed over to the father of the plaintiff by the defendants’ father, he cannot claim that he is in possession with the knowledge of the defendants adversely and without interference, cannot be accepted. When possession has been claimed by a person based on the agreement of sale, as per the Transfer of Property Act, cannot blow hot and cold by taking a different stand that he got into possession of the property by way of adverse possession. When the plaintiff has stated that there was an sale agreement and only after the sale agreement, he entered into the property later on stating that he is in adverse possession, both claim cannot be accepted and the same is to be rejected in toto. 20. When the plaintiff has stated that there was an sale agreement and only after the sale agreement, he entered into the property later on stating that he is in adverse possession, both claim cannot be accepted and the same is to be rejected in toto. 20. All the kist receipts are not belonging to the said property and in the absence of any other revenue documents, this Court has come to the conclusion that based on the admission of P.W.1, in his cross examination, that no Adangal has been produced in his name or his father’s name and the defendants documents i.e. Fasli 1409-1419 adangal stands in the name of the defendants father, has been clearly admitted. Accordingly, this Court is of the view that when the documents are in the name of the defendants, the the plaintiff was not in a position to prove his possession of the said property by adversely. In the absence of any concrete evidence to show that in what manner the plaintiff claims title or possession of the property, cannot be granted the claim made by him to inject the defendants from entering into the property. Other than the oral statement made by the plaintiff that the property has been mortgaged to the said Banker and the Bank Manager was examined and he has clearly stated that for the said loan obtained, no security was given for issuance of loan or for disbursement of loan. Hence, the stand made by the plaintiff is also rejected. Patta No.2070 do not relate to the lis property and that being the case, the said document, as if not used by the plaintiff as lease-hold right also not proved by him. 21. Further, on going through the averments of the defendants, it is clear that they have made a partition on 29.01.1979, which is a registered document and as per the said partition, the properties were allotted to the defendants 5 and 7 and accordingly, this Court is of the view that the properties are in possession and enjoyment of the defendants. 22. A perusal of the patta, chitta and adangal would show that from 1980 onwards, the property belongs to the defendants' family, which has been well established and no document was produced to show that the plaintiff is in possession and enjoyment of the property. 22. A perusal of the patta, chitta and adangal would show that from 1980 onwards, the property belongs to the defendants' family, which has been well established and no document was produced to show that the plaintiff is in possession and enjoyment of the property. Claim by adverse possession has two basic elements i.e. the possession of the defendant should be adverse to the plaintiff and the defendant must continue to remain in possession for a period of 12 years thereafter, animus possidendi as is well known a requisite ingredient of adverse possession. Mere possession does not ripen into possessory title until possessor holds property adverse to the title of the true owner for the said purpose. The person, who claims adverse possession is required to establish the date on which he came in possession, nature of possession, the factum of possession, knowledge to the true owner, duration of possession and possession was open and undisturbed. A person pleading adverse possession has no equities in his favour, as he is trying to defeat the rights of the true owner and, hence, it is for the plaintiff to clearly plead and establish all facts necessary to establish adverse possession. The courts always take unkind view towards statutes of limitation overriding property rights. Plea of adverse possession is not a pure question of law but a blended one of fact and law." No doubt, the plaintiff, in this case, not proved his possession. 23. According to P.W.2, before 30 years back the said Srinivasa Iyyangar requested him to sell his land to the plaintiff's family, but there was no strong and valid evidence adduced by P.W.2, and he was not in a position to say what is the nature of transaction between the parties and it is an oral evidence and the oral evidence cannot be accepted and the same is also liable to be rejected. The document produced by the plaintiff to receive additional documents under Order 41 Rule 27 of Civil Procedure Code, is a sale agreement, alleged to have been written by the defendants father to the plaintiff’s father and in the suit plaint itself they have stated that it is an oral agreement and producing the documents at the appeal stage, it is only an after-thought and the appellate Court has rightly rejected the same. 24. 24. This Court is of the view that the plaintiff's case has been rightly rejected by the Courts below. When the plaintiff has failed to let in appropriate evidence to prove the oral sale agreement or adverse possession and also the contra stand taken only for obtaining loan, defendants’ father had executed pronote and based on the execution of pronote, he is in possession of the property. All these aspects are contrary to each other and accordingly, the plaintiff has not proved his case and the same was rightly rejected by the Courts below. 25. The plaintiff's case was rightly rejected by the Courts below, and this Court finds no reason to interfere with the well reasoned order of the Courts below and also there is no question of law much less substantial question of law involved in this Second Appeal for consideration by this Court. Accordingly, the Second Appeal is liable to be dismissed. 26. In fine, the Second Appeal is dismissed. The appellant / plaintiff is directed to deliver the vacant possession to the respondents 5 and 7 / defendants 5 and 7 within a period of three months from the date of receipt of a copy of this order. However, there shall be no order as to costs. Consequently, connected miscellaneous petition is closed.